JOHN ZACCARDI v. CHRISTINE ZACCARDI
Annotate this CaseNOT FOR PUBLICATION WITHOUT THE
APPROVAL OF THE APPELLATE DIVISION
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SUPERIOR COURT OF NEW JERSEY
APPELLATE DIVISION
DOCKET NO. A-3024-15T3
JOHN ZACCARDI,
Plaintiff-Appellant,
v.
CHRISTINE ZACCARDI,
Defendant-Respondent.
_______________________________
Argued January 10, 2018 – Decided March 9, 2018
Before Judges Currier and Geiger.
On appeal from Superior Court of New Jersey,
Chancery Division, Family Part, Bergen County,
Docket No. FM-02-1933-10.
Bonnie C. Frost argued the cause for appellant
(Einhorn, Harris, Ascher, Barbarito & Frost,
PC, attorneys; Bonnie C. Frost, on the
briefs).
Lawrence A. Leven argued the cause for
respondent.
PER CURIAM
In this post-judgment matrimonial matter, plaintiff John
Zaccardi appeals from two Family Part orders denying, in pertinent
part, his requests (1) to terminate his alimony obligation; (2)
for reimbursement of certain child support expenses; (3) to compel
defendant Christine Zaccardi to pay half the difference of the
cash surrender values of the parties' respective life insurance
policies;1 and (4) for the return of a wrist-watch from defendant
or its cash value. Because we determine that the 2014 amendments
to
N.J.S.A. 2A:34-23, specifically section (k), are applicable to
this application to modify alimony, we remand for the proper
statutory consideration.
The parties were married in 1990 and had two daughters. A
dual final judgment of divorce (FJOD) was entered on June 28,
2012. The FJOD incorporated the terms of a comprehensive marital
settlement agreement (MSA), including alimony and child support
provisions.
In July 2015, Christine2 filed a motion to enforce certain
provisions of the MSA. John responded by filing a cross-motion,
seeking in pertinent part (1) to terminate his alimony obligations;
(2) reimbursement for $33,000 in child support; and (3) the return
of a watch.
1
During oral argument, counsel advised that the life insurance
issue had been resolved.
2
We use the parties' first names for clarity and the ease of the
reader. We mean no disrespect.
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John alleged that he no longer owned a share of two businesses
that he had held when the parties entered into the MSA. He
provided financial documents to support his request to terminate
his alimony obligation altogether. John also advised that the
parties' older daughter was residing with him several days a week
while she attended college. He requested reimbursement for the
six months of child support he had continued to pay Christine for
their two children.
Lastly, John alleged that Christine had sold a watch that was
designated for the eldest daughter on her twenty-first birthday.
He requested the watch be returned or that Christine pay the
daughter its cash value of $5000. Christine opposed the motion,
asserting that John's "entire application [was] based on self-
serving unsubstantiated financial documents which he . . .
manipulated for his own benefit." She noted that John's net worth
had more than doubled in the years since their divorce, he
continued to take numerous lavish vacations, and there had been
no evidence presented to support John's argument that he had to
sell his share of the businesses for $1.
Christine conceded that the eldest daughter was living with
John; however, she alleged that he had not asked for any credits
in the two years in which he was paying the full amount of child
support because he knew she could not meet all of the expenses and
3 A-3024-15T3
needs of the younger child. Going forward, she advised the parties
had agreed to each be responsible for a child's needs and expenses.
As for the watch, Christine denied having it; she said John had
taken it from the house.
In the November 30, 2015 oral decision, the Family Part judge
recited the factors set forth in
N.J.S.A. 2A:34-23(b)3 to determine
whether termination or modification of alimony was appropriate.
He concluded that John had not made a prima facie showing of
changed circumstances warranting the termination of his alimony
obligation. He noted that John was still employed, had several
sources of income, and retained substantial assets.
Although the judge granted John's request to terminate child
support payments to Christine going forward, he denied him
reimbursement for past payments. He also denied John's request
for the return of the watch, noting that Christine denied having
possession of it. The judge denied Christine's request for counsel
fees.
Christine subsequently moved for reconsideration of the
denial of a fee award. John cross-moved for reconsideration of
the denial of the termination of alimony and child support credits.
3
Although the judge mentions that this statute is "recently
amended," he does not refer to the new provision,
N.J.S.A. 2A:34-
23(k).
4 A-3024-15T3
The judge determined that the cross-motion was untimely and granted
counsel fees to Christine for having to defend it. His rulings
were memorialized in an order of February 29, 2016.
On appeal, John asserts that the trial judge erred in (1) not
holding a plenary hearing to determine whether a termination of
alimony was warranted; (2) failing to award him child support
credits; and (3) failing to order Christine to pay the cash value
of the watch to the elder daughter.
We are mindful that we "accord great deference to
discretionary decisions of Family Part judges." Milne v.
Goldenberg,
428 N.J. Super. 184, 197 (App. Div. 2012) (citing
Donnelly v. Donnelly,
405 N.J. Super. 117, 127 (App. Div. 2009)).
We review a trial court's legal conclusions de novo. Thieme v.
Aucoin-Thieme,
227 N.J. 269, 283 (2016).
Despite the judge's comment pertaining to the recent
amendments to the governing statute regarding alimony
modification, he did not apply the new statute. We note he was
not asked to do so by counsel and, even on appeal, counsel have
not argued that the provisions under the new section (k) of
N.J.S.A. 2A:34-23 apply here.
The amendments to the statute became effective on September
10, 2014, more than a year before John filed his cross-motion.
The amendments were "designed to more clearly quantify
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considerations examined when faced with a request to establish or
modify alimony." Spangenberg v. Kolakowski,
442 N.J. Super. 529,
536-37 (App. Div. 2015). Section (k) specifically addresses the
circumstances of a W2 wage earner who becomes unemployed and seeks
a subsequent reduction in his or her alimony obligation. The
provision sets forth a list of statutory factors for a court's
consideration when presented with an application to modify
alimony.
The issue, then, is whether the amended statute is applicable
to this case. For the following reasons, we conclude that it is
and, therefore, we remand to the trial judge for a consideration
of the section (k) factors.
The bill adopting the alimony amendments contains the
following provision:
This act shall take effect immediately and
shall not be construed either to modify the
duration of alimony ordered or agreed upon or
other specifically bargained for contractual
provisions that have been incorporated into:
a. a final judgment of divorce or
dissolution;
b. a final order that has concluded
post-judgment litigation; or
c. any enforceable written
agreement between the parties.
[L. 2014, c. 42, § 2.]
6 A-3024-15T3
This language "signals the legislative recognition of the need to
uphold prior agreements executed or final orders filed before
adoption of the statutory amendments." Spangenberg,
442 N.J.
Super. at 538.
Here, the issue of a modification or termination of alimony
had not been adjudicated prior to the filing of these motions, so
there is no final order predating the statute amendment to preclude
its application. In turning to the MSA itself, it lists the
following conditions, which may result in a modification of
alimony:
A. Death of [w]ife; or
B. Death of [h]usband; or
C. Wife's remarriage; or
D. Cohabitation under Konzelman v. Konzelman,
158 N.J. 185 [(1999)], which shall trigger a
termination of alimony.
E. As otherwise modifiable under New Jersey
law.
The only avenue noted in the MSA under which John may pursue
a modification in alimony is under New Jersey law. We, therefore,
find that the 2014 amendments are applicable to the alimony
application here as "the parties had no written agreement to apply
a different standard" and "the issue has not already been litigated
7 A-3024-15T3
and adjudicated by the court." Mills v. Mills,
447 N.J. Super.
78, 97 (Ch. Div. 2016).
On remand, for a complete review, the judge may determine to
permit the parties to update their certifications and provide
supporting documentation. We also leave it to the judge's
discretion as to whether a plenary hearing is warranted.
John's arguments concerning a child support credit and the
wristwatch are without sufficient merit to warrant discussion in
a written opinion. R. 2:11-3(e)(1)(E); see also
N.J.S.A. 2A:17-
56.23(a) ("No payment or installment of an order for child support,
or those portions of an order which are allocated for child support
. . . shall be retroactively modified by the court.").
Affirmed in part. Vacated and remanded in part. We do not
retain jurisdiction.
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